B-159812, JUN. 9, 1967

B-159812, JUN. 9, 1967

TO C.I. WHITTEN TRANSFER COMPANY:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF AUGUST 1, 1966, REQUESTING REVIEW OF THE SETTLEMENT DATED JULY 18, 1966, WHICH DISALLOWED YOUR CLAIM ON SUPPLEMENTAL BILL NO. 4433-A, OUR TK-830729, FOR $57.10, THE BALANCE OF FREIGHT CHARGE ALLEGEDLY DUE FOR THE TRANSPORTATION OF 1,050 POUNDS OF JET THRUST UNITS (PLACARDED CLASS A EXPLOSIVES) FROM ALLEGANY BALLISTICS LABORATORY, ROCKET CENTER, WEST VIRGINIA, TO MARTINSBURG, WEST VIRGINIA, UNDER GOVERNMENT BILL OF LADING NO. C-1094037, DATED JANUARY 22, 1965.

FOR THIS SERVICE YOU COLLECTED $259.60 BASED ON A RATE OF $1.18 PER 100 POUNDS AND A MINIMUM WEIGHT OF 22,000 POUNDS WHICH IS PUBLISHED IN YOUR COMMODITY TARIFF MF-I.C.C. NO. 46. IN THE AUDIT OF THE PAYMENT VOUCHER, OUR TRANSPORTATION DIVISION COMPUTED THE CHARGES UNDER THE PROVISIONS OF SUPPLEMENT NO. 4 TO YOUR TENDER I.C.C. NO. 103 WHICH YIELDS FREIGHT CHARGES OF $202.50 BASED ON A RATE OF $2.70 PER 100 POUNDS AND A MINIMUM WEIGHT OF 7,500 POUNDS. YOU REFUNDED THE RESULTING OVERCHARGE OF $57.10 UNDER PROTEST AND YOUR CLAIM FOR THAT AMOUNT WAS DISALLOWED IN THE SETTLEMENT HERE UNDER REVIEW.

THE CLAIM WAS DISALLOWED BECAUSE, QUOTING FROM THE SETTLEMENT, "YOUR TENDER ICC 103 APPLIES BETWEEN ALL POINTS SERVED LOCALLY BY YOUR COMPANY. YOU OBJECT TO THE WORD "ALL" BEING SUPPLIED, POINTING OUT THAT ITEMS 3 AND 4 OF YOUR TENDER STATE THAT THE TENDER APPLIES BETWEEN "POINTS SERVED BY C.I. WHITTEN TRANSFER COMPANY.' IT IS YOUR POSITION THAT SINCE THIS WAS AN INTRASTATE SHIPMENT THE TENDER DOES NOT APPLY. AS LIMITING THE SCOPE OF THE TENDER TO INTERSTATE MOVEMENTS, YOU POINT TO ITEM 17 OF THE TENDER, WHICH READS:

"OPERATING AUTHORITIES: IN MAKING THIS TENDER THE CARRIER REPRESENT (SIC) TO THE UNITED STATES THAT THE SERVICES WILL BE PERFORMED IN ACCORDANCE WITH APPLICABLE FEDERAL, STATE AND MUNICIPAL LAWS AND REGULATIONS AND THAT THE CARRIERS POSSESS THE REQUIRED OPERATING AUTHORITY TO TRANSPORT THE COMMODITY FROM, TO OR BETWEEN THE PLACES HEREIN SET FORTH, AS EMBRACED IN THE FOLLOWING CERTIFICATES:

C.I. WHITTEN TRANSFER COMPANY MC-47142"

A VOLUNTARY TENDER MADE TO THE GOVERNMENT PURSUANT TO SECTION 22 OF THE INTERSTATE COMMERCE ACT, 49 U.S.C. 22, IS A CONTINUING UNILATERAL OFFER WHICH RIPENS INTO AN AGREEMENT OR CONTRACT WHEN ACCEPTED BY THE GOVERNMENT. THE UNITED STATES ALSO IS PERMITTED TO CONTRACT FOR INTRASTATE TRANSPORTATION SERVICES AT SPECIAL RATES (INTRASTATE OR INTERSTATE) WITHOUT STATE APPROVAL OF THE RATES, SEE PUBLIC UTILITIES COMMISSION OF CALIFORNIA V UNITED STATES, 355 U.S. 534 (1958), AND UNLESS PROHIBITED BY THE LANGUAGE OF THE TENDER, WE SEE NO REASON WHY THE SAME TENDER CANNOT BE APPLIED TO THE WORDS "POINTS SERVED BY C.I. WHITTEN TRANSFER COMPANY," WITHOUT QUALIFICATION, AS USED IN ITEMS 3 AND 4 OF YOUR TENDER, LOGICALLY ENCOMPASS EACH AND EVERY POINT SERVED BY YOUR COMPANY AND THUS ALL POINTS SERVED BY YOUR COMPANY. AND ITEM 17 DOES NOT APPEAR TO QUALIFY THOSE WORDS OR OTHERWISE LIMIT THE TENDER TO INTERSTATE MOVEMENTS; RATHER, THE LANGUAGE OF ITEM 17 CONSTITUTES THE CARRIER'S WARRANTY THAT IT CAN LEGALLY PERFORM THE TRANSPORTATION SERVICES OFFERED IN THE TENDER AND THUS GIVES SOME ASSURANCE THAT THE GOVERNMENT WILL NOT BECOME A PARTY TO ILLEGAL TRANSPORTATION. IT DOES NOT APPEAR THAT THE LANGUAGE OF SECTION 17 COULD HAVE BEEN INTENDED TO REQUIRE THE GOVERNMENT TO ASCERTAIN THE EXACT SCOPE OF YOUR OPERATING RIGHTS UNDER MC-47142 AND APPLY SUCH AUTHORITY TO LIMIT THE QUOTATION TO INTERSTATE SHIPMENTS ONLY. IF THE QUOTATION WAS SO INTENDED, CERTAINLY IT WAS INCUMBENT ON THE OFFEROR TO SET FORTH ITS INTENTION IN MORE EXPLICIT TERMS. MOREOVER, WHILE IT APPEARS THE POINTS OF ORIGIN AND DESTINATION OF THE INVOLVED SHIPMENT ARE WITHIN THE STATE OF WEST VIRGINIA AND THE RECORD IS INCONCLUSIVE AS TO THE ACTUAL ROUTE OVER WHICH THE SHIPMENT MOVED, IT IS UNDERSTOOD THE SHORTEST AND MOST PRACTICAL ROUTE BETWEEN THESE POINTS IS BY WAY OF AN INTERSTATE ROUTE THROUGH THE STATES OF MARYLAND AND WEST VIRGINIA.

IN THESE CIRCUMSTANCES IT APPEARS THAT THE CHARGES ON THE SHIPMENT SHOULD BE COMPUTED FROM YOUR TENDER I.C.C. NO. 103. THEREFORE, AND SINCE OUR SETTLEMENT OF JULY 18, 1966, IS NOT SHOWN TO BE IN ERROR OTHERWISE, IT IS SUSTAINED.